Providing Information at a Tennessee DUI Roadblock or Sobriety Checkpoint

Image courtesy of Naypong at FreeDigitalPhotos.net

At a typical sobriety checkpoint trying to identify drivers under the influence of alcohol and/or drugs, motorists are forced to stop their vehicle, roll down their window, and usually provide certain documentation to an officer.  The documentation generally includes a valid driver’s license, proof of registration and proof of financial responsibility (liability insurance). While the driver is gathering these documents, the officer may also ask questions about what the driver may or may not have been doing before reaching the checkpoint. The purpose of these questions is to assist the officer in identifying those driving while intoxicated (DWI).

Florida lawyer Warren Redlich disagrees with motorists being forced to roll down their window and verbally communicate with an officer at a sobriety checkpoint. In order to avoid

forced communication with an officer at a checkpoint, Mr. Redlich has developed state specific signs or placards intended to replace the responsibility of the motorist to roll the window down and answer questions. Some of the words in bold on these signs include “I remain silent,” “No Searches,” and “I want my lawyer.” Mr. Redlich’s opinion is that a motorist should not be forced to answer questions at a checkpoint.

Instead, Mr. Redlich believes it is sufficient to simply place the previously mentioned sign against the car window where it can easily be read. Anticipating being asked for one’s driver’s license, registration and insurance proof, Mr. Redlich suggests placing these items in a plastic bag and hang it from the driver’s window.

Peter Gerstenzang, a lawyer practicing in New York, thinks that using these signs “…[I]s really dumb.” See: http://news10.com/2015/02/11/fla-lawyer-dwi-checkpoint-signs-spark-controversy/. He suggests if the motorist has nothing to hide then the motorist has no reason to use the sign at a sobriety checkpoint.

Steven Oberman, a lawyer practicing in Tennessee, echoes the thoughts of his colleague, Mr. Gerstenzang. If a motorist finds him/herself at a checkpoint (a common occurrence throughout Tennessee), the motorist should simply provide any requested documentation.

If the officer asks about conduct that may incriminate the driver or if the motorist is uncomfortable answering a question, he/she should politely decline to answer the question. The motorist should advise the officer that they feel they are being accused of a crime they didn’t commit and advise the officer that they prefer that any personal questions only be answered in the presence of their lawyer. The motorist should then ask if they are free to leave (this may later assist the motorist in defending any charge that may be brought against the motorist).

Following the advice of Mr. Redlich would, in the opinion of this author, only make it more likely that the investigating officer would find a reason to arrest the driver for DUI, a related driving offense, or perhaps even for “Obstruction of Law Enforcement” as prohibited by Tennessee Code Annotated § 39-16-602. As with other matters of importance, it is suggested to use your common sense rather than trying to take the advice of someone unfamiliar with the facts of your specific situation. It is always best to rely on the legal advice of a lawyer licensed in your state and familiar with the laws applicable to your case.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.

He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 23 states, the District of Columbia and three foreign countries.

You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.

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Tennessee v. Kennedy & Tennessee v. Wells – Blood Draws and the Fourth Amendment

Two Tennessee cases were recently decided concerning the constitutionality of mandatory blood draws of those accused of driving under the influence (DUI). This legal issue is highlighted in Tennessee Court of Criminal Appeals cases, State v. Kennedy

[1] and State v. Wells.[2] Both cases discuss at length the constitutionality of the Implied Consent statute, Tennessee Code Annotated (T.C.A) § 55-10-406(f)(2) in relation to Fourth Amendment rights against unreasonable searches and seizures.
Generally, T.C.A. § 55-10-406(a) provides that “[a]ny person who drives a motor vehicle in this state (Tennessee) is deemed to have given consent to a test or tests” contingent upon the “law enforcement officer having reasonable grounds to believe the person was driving under the influence [(DUI or DWI)] of alcohol, drugs, any other intoxicant or any combination of alcohol, drugs, or other intoxicants.”[3] This Driving Under the Influence (DUI), also know as Driving While Impaired (DWI), statute fails to specifically mention a requirement for a search warrant before such a forced blood draw occurs.
The subsection discussed by the Court, T.C.A. § 55-10-406(f)(2), requires Tennessee law enforcement officers in some circumstances to “cause the driver to be tested for the purpose of determining the alcohol or drug content of the driver’s blood.”[4] Regardless of the driver’s consent, law enforcement officers may forcibly draw blood with probable cause to believe that the driver has committed vehicular homicide while intoxicated,[5] aggravated vehicular homicide,[6] or a multiple offense DUI violation.[7]
The Fourth Amendment guarantees:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[8]
The “exclusionary rule,”[9] enforces the Fourth Amendment’s warrant requirement by presuming warrantless seizures are unreasonable and the seized evidence may be suppressed at trial.[10] Warrant requirements may only be waived through exigent circumstances or recognized exceptions.[11] Generally recognized exceptions include “search[es] incident to arrest, plain view, stop and frisk, hot pursuit, search under exigent circumstances, and…consent to search.”[12] The Supreme Court has held that “exigent circumstances” should be determined by the “totality of the circumstances.”[13]
James Otis, a young colonial era attorney, was an initial proponent of the Fourth Amendment’s warranty requirement.[14] Mr. Otis defended colonists against British authorities using “writs of assistance” to conduct searches—even without suspicion.[15] Despite an unfavorable outcome at trial, Founding Father John Adams endearingly labeled “the dispute as the spark of the American Revolution: ‘Then and there was the child ‘Independence’ born.’”[16] Since the Fourth Amendment’s implementation in 1789, it has served as the most prolific source of constitutional litigation in American history.[17]
In 1868, the Fourteenth Amendment applied the Bill of Rights, which originally only applied to the federal government, to the individual states.[18] In part, it mandated that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”.[19] Due Process rights have two interpretations: procedural and substantive due process rights.[20] Procedural due process guarantees a fair legal process when the government or state burdens an individual’s protected interest in “life, liberty, or property;” whereas substantive due process guarantees that the government will not encroach citizens’ fundamental rights.[21]
In State v. Kennedy
,[22] Fairview City Police Department officers followed the defendant home after recognizing his driver’s license as revoked.[23] The officer testified he detected an odor of an alcoholic beverage and found defendant’s “eyes to be watery.”[24] The defendant was subsequently transported to the local police station where he refused both Standardized Field Sobriety Tests (SFSTs) and a blood alcohol content (BLAC) test.[25] Thus, he was taken to the Williamson County Medical Center for a phlebotomist to conduct a mandatory blood draw. No warrant was obtained prior to this procedure because efforts to obtain one would have made “the streets of Fairview less safe.”[26] During trial, the court granted the defendant’s motion to suppress the blood draw’s results and ruled that since T.C.A. § 55-10-406(f)(2) “created a per se exception to the warrant requirement, it violated the state and federal constitutions.”[27]
On interlocutory appeal, the State sought to reverse the blood draw’s suppression and argued that T.C.A. § 55-10-406(f)(2) “does not create an unconstitutional per se exception to the federal warrant requirement and that, in any event, exigent circumstances justified the taking of the defendant’s blood.”[28] Here, however, the Tennessee Court of Criminal Appeals determined that the State’s argument of “less safe” streets did not constitute exigent circumstances to justify a warrantless seizure of defendant’s blood.[29] The court also ruled that T.C.A. § 55-10-406(f)(2) is “open to the interpretation that a warrant is required before a mandatory blood draw when a suspect refuses to consent to the draw.”[30] Thus, the court upheld the statute as constitutional.[31]
Similarly, in State v. Wells
,[32] the defendant was charged with DUI, among other offenses, after wrecking his vehicle into a building.[33] Upon his apprehension in a nearby gas station, the defendant refused law enforcement’s request for a blood test.[34] Despite this refusal, and absent a warrant, law enforcement officers proceeded to transport the defendant to a nearby hospital for a mandatory blood test.[35] During trial, the defendant moved to suppress the evidence, alleging a violation of his Fourth Amendment rights—the trial court agreed and granted the motion.[36] Also, the trial court ruled that T.C.A. § 55-10-406(f)(2) was unconstitutional based on its per se exception to a warrant requirement.[37] Upon appeal, the State argued that exigent circumstances justified the blood draw without a warrant; however, the Court of Criminal Appeals of Tennessee affirmed that sufficient exigent circumstances did not exist but reversed the lower court’s ruling that the statute was unconstitutional.[38]
The court considered whether the implied consent law under T.C.A. § 55-10-406(a) provides an exception to the Fourth Amendment’s warrant requirement.[39] Favoring the defendant, the court held “[t]he state cannot, through legislation, strip an accused of constitutional rights” and that drawing the defendant’s blood without a warrant was contrary to Fourth Amendment privacy guarantees.[40] Similar to State v. Kennedy
, the court found that without the accused’s consent or a warrant, and absent exigent circumstances, as was the case here, the state could not conduct a blood draw.[41] However, the court upheld the statute as constitutional since it “did not mandate a blood draw in violation of the Fourth Amendment” and its “silence did not dispense with the warrant requirement.”[42]
Looking forward, the general rule to be gleaned from the aforementioned cases is that without the accused’s consent or a search warrant, and absent exigent circumstances or a generally accepted warrant exception, the state cannot conduct a forced blood draw.

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.
He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 26 states, the District of Columbia and three foreign countries.
You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.
The author would also like to recognize and thank Matt Wayne, a second year law student at the University of Tennessee College of Law, for his research and editing contributions of this article.

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The Tennessee Drug-Free Workplace Program and Drunk Driving

Flag of the State of Tennessee
Image from Wikimedia Commons

52.6 million American adults are binge[1] drinkers—more than Tanzania’s entire population, an East African country, of 49,639,138.[2] These binge drinkers are not simply unemployed town drunks—42.1 million work either full or part time.[3] However, alcohol is not the only abused substance affecting Americans; illicit drug use has contributed to approximately 23.9 unprescribed drug users in the United States—9.4 million are employed adults.[4] Substance abuse also contributes to approximately 30 million Americans who are driving under the influence of alcohol each year, and 10 million others driving under the influence of illicit drugs per year.[5] Who knows how many millions are driving under the influence of prescribed medication each year? In addition to the apparent negative affects of substance abuse on one’s personal health and relationships, it also cost businesses approximately $100 billion per year.[6]

A new impediment to drunk driving, albeit indirect, was been implemented by the State of Tennessee. The Workers’ Compensation Reform Act of 1996 created the Tennessee Drug-Free Workplace Program (DFWP) to promote drug-free workplaces, and discourage and penalize employee substance abuse.[7] Employers are incentivized to join the program. A drug-free workplace offers benefits such as: a 5% premium credit on workers’ compensation insurance policy, “for cause” discipline, discharge, or refusal to hire employees for policy violations, and shifts the burden of proof to the employee after a workplace injury if he or she receives a positive post-accident drug test or refuses to submit a test.[8]

Once an employer implements DFWP, they are also upheld to certain annual requirements. For instance, participating employers must administer five types of tests: pre-employment, post-injury, reasonable suspicion, fitness-for-duty (FFD), and compliance testing following an Employee Assistance Program (EAP).[9] Although not required, employers may also conduct random drug tests. These requirements could provide sufficient evidence to arrest the employee for drunk driving (driving under the influence of an intoxicant), even if the employee wasn’t driving at the time of an on-the-job accident.

First, DFWP pre-employment tests require that potential employees be screened for drugs, whereas alcohol screening is optional.[10] Second, if a workplace accident occurs, injured employees must submit blood or urine specimens to determine whether the influence of drugs or alcohol precluded the accident.[11] Third, an employer may require a drug or alcohol test with reasonable suspicion that an employee is under the influence.[12] The employer has seven calendar days to explicitly transcribe the circumstances giving rise to his or her suspicion.[13] An employee’s performance, appearance, and behavior may predicate reasonable suspicion.[14]

For employers interested in attaining a drug-free workplace, the United States Department of Labor offers a “Build a Drug-Free Workplace Policy” option to “develop a customized drug-free workplace policy statement for your organization.”[15] Employers should ensure that drug or alcohol-testing policies are reasonable, nondiscriminatory, and explicit in a written policy statement. This is especially pertinent for government employers, since taking employee specimens for drug or alcohol testing may implicate the Fourth Amendment’s protections against “unreasonable searches and seizures.”[16]

About the Author: Steven Oberman has been licensed in Tennessee since 1980, and successfully defended over 2,000 DUI defendants.  Among the many honors bestowed upon him, Steve served as Dean of the National College for DUI Defense, Inc. and currently serves as chair of the National Association of Criminal Defense Lawyers DUI Committee.  Steve was the first lawyer in Tennessee to be certified as a DUI Defense Specialist by the Tennessee Commission on Continuing Legal Education and Specialization and the NCDD.

He is the author of DUI: The Crimes & Consequences in Tennessee, updated annually since 1991 (Thomson-West), and co-author with Lawrence Taylor of the national treatise, Drunk Driving Defense, 7th edition (Wolters Kluwer/Aspen).  Steve has served as an adjunct professor at the University of Tennessee Law School since 1993 and has received a number of prestigious awards for his faculty contributions.  He is a popular international speaker, having spoken at legal seminars in 23 states, the District of Columbia and three foreign countries.

You may contact Steve through his website at www.tndui.com or by telephone at (865) 249-7200.

The author would also like to recognize and thank Matt Wayne, a second year law student at the University of Tennessee College of Law, for his research and editing contributions of this article.

Footnotes:

[1] “binge drinking” being defined as “a pattern of drinking that brings a person’s blood alcohol concentration (BAC) to 0.08 grams percent or above. This typically happens when men consume 5 or more drinks, and when women consume 4 or more drinks, in about 2 hours.” Alcohol and Public Health, Centers for Disease Control and Prevention, http://www.cdc.gov/alcohol/fact-sheets/binge-drinking.htm.

[2] Tennessee’s Drug-Free Workplace Program: Why Join, 39 Tenn. Attorneys Memo 47 (Nov. 24, 2014); https://www.census.gov/population/international/data/countryrank/rank.php

[3] Id.

[4] Id.

[5] Id. (“In an average year, 30 million Americans drive while impaired by alcohol, while 10 million drive while impaired by illicit drugs.”).

[6] Drug Free Workplace Program, Department of Labor and Workforce Development, http://www.tn.gov/labor-wfd/wcomp/dfwp.shtml; Id.

[7] See Tenn. Attorneys Memo, supra note 2.

[8] See Drug Free Workplace Program, supra note 6; Id.

[9] See Tenn. Attorneys Memo, supra note 2.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Drug-Free Workplace Advisor, United States Department of Labor, http://www.dol.gov/elaws/asp/drugfree/drugs/screen1.asp.

[16] Id.; see also U.S. Const. amend. IV (stating “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”.) (emphasis added).

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Tougher Tennessee DUI Laws Take Effect in 2011

Several new laws in Tennessee DUI laws will make penalties for drunk driving, and repeated and excessive drunk driving harsher.

One new DUI law that has gone into effect will call for those DUI offenders who register a blood alcohol content higher than .15 percent to install and pay for an ignition interlock device if they want to drive at all.

Another DUI law will require state judges to determine if a DUI suspect is a danger to the community, and therefore be able to deny them bond. This caveat would typically impact repeat DUI offenders.

The Chattanooga Free Press reports that the new laws are part of a stronger package of drunk driving legislation which lawmakers hope will scare some DUI offenders out of breaking the law again. The trend towards stronger DUI law is certainly a national one, and this latest package only strengthens this trend.

Assistant District Attorney in Hamilton County Kate Lavery is one strong supporter of the new legislation. She said in statements that her hope is that the new laws will decrease the number of DUI offenses.

“We currently have people out on bond that commit vehicular homicide or other DUIs,” she said, referring to the bill that would make it easier to prevent DUI suspects deemed especially dangerous from getting out on bail.

“This will strike right at the heart of our issue,” she said of the new laws.

The ignition interlock devices, which force a driver to take a blood alcohol breath test before they can start a car, will cost offenders about $60 per month. This cost will be mandatory upon conviction.

Under the new legislation, such in-car breath testers will even be possible for first-time DUI offenders. Such a device could be the requirement for some in order to get their license back after a license suspension period or a restricted driving period.

If someone who is convicted of driving with a blood alcohol content over .08 while also having a passenger under the age of 18 will have to have an ignition interlock device installed, even if it is their first offense.

Ignition interlock devices will also be required for cases including an accident resulting in injury, property damage over $400, or if they refuse to take a breath or blood test following a DUI arrest. Again, the in-car breath test could be installed in these cases even if it is a first DUI offense.

Tennessee joins several other states in terms of the strictness of DUI penalties. Eleven other states require an ignition interlock device with a BAC over .15, and 13 state require it it for first-time DUI offenders, according to the Free Press. Other states require the device upon multiple drunk driving convictions.

View the original article here

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